The USPTO recently issued guidance to its examining corps, in an attempt to apply the Alice holding to ongoing patent examination practice. In conjunction with its issuance of the preliminary examination guidance, the USPTO asked for public comments on the guidance. The USPTO received a number of well considered submissions in response to its request for comments, including a submission from the Electronic Frontier Foundation (EFF), which argued that Alice represented a significant change in patent law and one that substantially narrowed subject-matter eligibility. As the EFF would have it, "[t]he PTO should clarify that Alice significantly changes the law of patent eligibility" and "[t]he PTO should make clear that any claimed invention that takes data as its input and has data as its output should be invalid under the Alice standard." The simplicity of that formulation is attractive but one wonders, for example, whether the EFF's proposed standard leaves any room for securing patent protection on clever signal processing innovations, e.g., in the realm of communications.

In marked contrast, in its response to the USPTO's request for comments, the American Intellectual Property Law Association (AIPLA) advised that the Supreme Court's Alice decision introduced "no new legal principles for applying the abstract idea exception to patent eligible subject matter" and that:

There’s been no substantive change in the law. The opinion in Alice applies settled principles for applying the abstract idea exception to patent eligibility of process claims, making no substantive changes to that law. It applied pre-existing law and appears to be limited to the particular facts of the case.

As the disctrict courts and the Federal Circuit wrestle with post-Alice controversies, we'll see whether the EFF or the AIPLA had the better take on Alice. Early evidence from the USPTO does not bode well for patent applicants, inasmuch as post-Alice patent examination seems to be making enthusiastic and overbroad use of the "abstract idea" ineligibility at issue in Alice.